July 12, 2019

Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. (2019 NY Slip Op 51172(U))

Headnote

The relevant facts considered by the court were that the plaintiff, a medical provider, filed a summons and complaint to recover first-party no-fault benefits, but did not serve these documents on the defendant within the 120-day time period allotted by CPLR 306-b. The defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8), and the plaintiff "cross-moved," pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon the defendant and to deem the service on December 31, 2015 timely. The main issue decided by the court was whether the plaintiff's delayed service of the summons and complaint warranted dismissal of the complaint. The holding of the court was that the order granting the defendant's motion to dismiss the complaint and denying the plaintiff's "cross" motion for an extension of time to serve the documents was affirmed.

Reported in New York Official Reports at Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. (2019 NY Slip Op 51172(U))

Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. (2019 NY Slip Op 51172(U)) [*1]

Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co.

2019 NY Slip Op 51172(U) [64 Misc 3d 138(A)]

Decided on July 12, 2019

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 12, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-2258 K C

Jamaica Dedicated Medical Care, P.C., as Assignee of Kimberly Douglas, Appellant,
against
USAA Casualty Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Anita Nissan Yehuda and Joseph Schwarzenberg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated December 1, 2016. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), and denied plaintiff’s “cross” motion, pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the service on December 31, 2015 timely.

ORDERED that the order is affirmed, without costs.

Plaintiff, a provider, commenced this action to recover assigned first-party no-fault benefits by filing a summons and complaint in the Civil Court on July 14, 2015 (see CCA 400). However, plaintiff did not serve these documents on defendant until December 31, 2015, which was beyond the 120-day time period allotted by CPLR 306-b (see CCA 403). By notice of motion returnable on February 25, 2016, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8), and, by notice of motion returnable on December 1, 2016, plaintiff “cross-moved,” pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the December 31, 2015 service timely. By order dated December 1, 2016, the Civil Court granted defendant’s motion and denied plaintiff’s “cross” motion.

For the reasons stated in Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2017-2251 K C], decided herewith), the order is affirmed.

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019